MATUTE v CRAMER - [2022] SADC 78

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master)
MATUTE v CRAMER
[2022] SADC 78
Judgment of his Honour Judge Dart
29 June 2022
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - PARTIES AND NON-PARTIES - PERSON UNDER DISABILITY
Respondent made application for an inquiry as to whether the applicant is a person under a disability - consideration of meaning of disability - medical evidence produced - applicant did not cooperate with the inquiry - Master appointed Public Trustee as litigation guardian - applicant appeared in person - applicant denies that she has or ever has had any mental health issues - appeal grounds not made out.
Held:
1.      Application for an extension of time to appeal dismissed.
2.      Appeal dismissed.
3.      The appellant is to pay the respondent’s costs of the appeal.
Manning v Russell (2015) 123 SASR 135; Slaveski v State of Victoria (2009) 25 VR 160, [2009] VSC 596, considered.

MATUTE v CRAMER
[2022] SADC 78

This is an appeal from a decision of a Master. The decision appealed from is one by which the Master appointed a litigation guardian. The litigation guardian has stood back from this appeal and allowed the appellant to represent herself. The appellant has identified no error made by the Master. The appeal should be dismissed.
Background
The appellant is the applicant in a District Court proceeding commenced in 2018. Her claim arises out of a motor vehicle accident. The respondent has admitted liability and the matter is proceeding as an assessment of damages.
On 4 December 2018 the respondent made an application which sought to have the Court inquire into the question of whether the appellant was a person under a disability. If the Court found that to the case, an order was sought appointing a litigation guardian.
The interlocutory application was supported by a solicitor’s affidavit.[1] The affidavit contained a summary of troubling issues contained in correspondence received from the plaintiff. It also contained a summary of observations from medical practitioners and what the solicitor said was irrational conduct in the proceedings by the appellant. The solicitors acted appropriately in bringing the matter to the attention of the Court.
[1] Affidavit of Salvatore Alvaro filed 5 December 2018 (FDN 17).
In February 2019 Master Rice determined that it was appropriate to conduct an inquiry into whether the appellant was a person under a disability. He stayed the proceedings and directed that a psychiatrist assess the plaintiff. The Master set out a number of questions for the psychiatrist to answer. In the result, the appellant refused to attend at any appointment with the psychiatrist. The psychiatrist was Dr Tony Davis.
Dr Davis prepared a report based on a review of the medical records and history of the appellant. In his report he indicated as follows:
The documented history indicates that the plaintiff has experienced severe mental illness, with past diagnoses of Bipolar Affective Disorder in the context of hospitalization. I have not identified any formal assessment of mental state since discharge from Noarlunga Hospital in 2016. However, extensive documentation highlights ongoing psychiatric disturbance with manifest paranoid ideation and irrationality, thought disorder, impairment of insight and disturbance of judgement. At times, some of the paranoid ideation is of delusional intensity. The plaintiff continues to deny the reality of mental illness and its impact on her life.
The plaintiff is clearly an intelligent and educated person who has a capacity to intellectualize and vigorously engage in complex legal proceedings, despite her chronic disturbances of perception, thought process, insight and judgement.
The documentation highlights repeated irrational behaviour, particularly in her dealings with independent medical specialists, the Defendant and the Court. It is apparent that engagement in these protracted proceedings has contributed to further disturbance of mental state. The documents also highlight a striking naivety and irrationality in relation to the plaintiff’s sense of entitlements and eligibility for substantial financial compensation.
The appellant was given an opportunity to respond to the report of Dr Davis. She did not produce a responding report. The final hearing of the application was before Master Olsson, who delivered written reasons in which she concluded as follows:[2]
The question that I must decide is whether, in 2020 and into the future, the plaintiff is mentally able to make rational decisions about taking, defending or settling proceedings (or to communicate decisions to others). Having taken into consideration all that the plaintiff has written, said and done during the time that I have undertaken the inquiry, I am driven to the conclusion that she is not.
The opinion of an experienced psychiatrist, Dr Davis, confirms that conclusion.
[2] Reasons for Decision (No 2) of Master Olsson, delivered 16 September 2020, at [74]-[75] (FDN 52 in DCCIV-18-543).
The Master appointed the Public Trustee as litigation guardian of the appellant.
The legal basis
The Court’s power to appoint a litigation guardian in respect of a person under a disability is protective. It is to ensure that just outcomes in litigation are arrived at. It is one part of the protective process. The other part is the requirement that any settlement of litigation in respect of a person under a disability must be approved by the Court.[3]
[3] Uniform Civil Rules 2020 (“UCR”) r 134.2.
The definition of “disability” in the 2006 Rules was as follows:
disability—each of the following is a person under a disability—
(a) a child;
(b) a person whose affairs are administered (wholly or in part) under a law for the protection of persons suffering from mental or physical disabilities;
(c) a person who is not physically or mentally able—
(i) to manage his or her own affairs; or
(ii) to make rational decisions about taking, defending or settling proceedings (or to communicate decisions to others);
In this matter the Court is dealing with sub-rule (c) and, in particular, the capacity of the appellant to make rational decisions. The application was commenced pursuant to r 78 which provides as follows:
78—Representation of party under disability
(1) As a general rule, a person under a disability (a protected person) may only take or defend proceedings through a guardian who has authority to represent the interests of the protected person (a litigation guardian).
Exception—
The Court may, however, permit a protected person to act personally in bringing, or taking any step in, proceedings.
(2) The litigation guardian is responsible for the conduct of the proceedings on behalf of the protected person and may take any step in the proceedings and do anything else that the protected person might have done if of full age and capacity.
(3) A party to an action who becomes aware that another party is a protected person and is not represented by a litigation guardian as required by this rule must inform the Court of that fact.
(4) A judgment or proceeding of the Court is not invalid because a party was not represented by a litigation guardian as required by this rule, but the Court may set aside the judgment or proceeding if satisfied that the party has been substantially prejudiced through the lack of such representation.
The Court in appointing a litigation guardian was acting pursuant to r 79(3), which provides:
(3) The Court may, on application by an interested person or on its own initiative, permit or appoint a suitable person to be a protected person's litigation guardian.
There are a number of authorities in South Australia dealing with the conduct of an inquiry. In Manning v Russell Nicholson J noted as follows: [4]
[4] (2015) 123 SASR 135 at [15].
However, the authorities in this court have adopted the position that where a party believes that another party is or has become a person under a disability the correct procedure is to apply for an inquiry to be conducted by the court to determine whether or not that is in fact the case. In Atkins v Atkins his Honour Judge Lunn, a Master of this court, made the following observations.
I consider that the correct procedure is that laid down in Atkin’s Court Forms Second Edition Volume 26, 1992 Issue at page 14 where it is stated:
Where it is unclear whether a party to litigation is a mental patient the court may, on application by the other party, by the party himself or by a person acting as next friend or guardian ad litem for the purpose of this application alone, order an inquiry to be made in the proceedings to determine whether he is in fact a patient within the meaning of RSC Order 80 and accordingly requires the appointment of a next friend or guardian ad litem if proceedings are to be continued. This inquiry is normally heard before the master who can compel the attendance of witnesses (including medical attendants and the plaintiff or defendant himself) and the production of documents.
[Citations of authority omitted]
A subsequent paragraph in that Edition of Atkins also states that the Court can direct the Official Solicitor to inquire into whether a party to litigation is the equivalent of a person under disability and report to the Court. However, there is no equivalent at the present time in this State of such an Official Solicitor and so that option is not open in this matter.
I consider that the course which should be adopted in this matter is that if the plaintiffs wish to ensure that the second defendant will be bound by any judgment or settlement they should apply for an inquiry by a Master of the Court as to whether the defendant is a person under disability for the purposes of this action. If the Court makes the order for the inquiry, directions will then be given about how the inquiry is to proceed, which may include directions about disclosure of documents and medical examinations.
[Footnotes omitted.]
In Slaveski v State of Victoria[5] Kyrou J was considering the equivalent rule in Victoria. His Honour said as follows:[6]
[5] (2009) 25 VR 160, [2009] VSC 596.
[6] Slaveski v State of Victoria (2009) 25 VR 160, [2009] VSC 596 at [32]-[34].
In my opinion, where a plaintiff is self-represented, the following issues are potentially relevant in determining whether he or she is a person under disability for the purposes of r 15.01 of the Rules:
(a)Does the plaintiff understand the factual framework for his or her claims and the type of evidence required to succeed in his or her claims?
(b)Is the plaintiff capable of understanding what is relevant to the proceeding and what is not relevant when these matters are explained to him or her?
(c)Is the plaintiff capable of assessing the impact of particular evidence on his or her case?
(d)Is the plaintiff able to understand the court processes and the basic rules for conducting his or her case when these matters are explained to him or her?
(e)Is the plaintiff able to understand court rulings made during the trial when they are explained to him or her?
(f)Assuming the plaintiff is able to understand court processes, the basic rules of conducting his or her case and court rulings, is he or she capable of complying with them and directions given by the judge?
(g)Does the plaintiff understand the roles of counsel for the defendant, witnesses and the judge and is he or she capable of respecting those roles and allowing the relevant individuals to discharge their duties without inappropriate interference or abuse?
(h)Is the plaintiff able to control his or her emotions and behave in a non-abusive and non-threatening manner when events do not go his or her way during the trial (such as when adverse rulings are made by the judge, questions are asked in cross-examination on sensitive issues or unfavourable answers are given by witnesses)?
(i)Does the plaintiff have an insight into the possible adverse consequences of his or her behaviour in court, including delay in the resolution of the claims, the defendant incurring additional costs that the plaintiff might have to pay if the claims are unsuccessful and the tying up of scarce judicial resources when these matters are explained to him or her?
(j)Does the plaintiff understand that he or she could possibly lose the case in whole or in part when this matter is explained to him or her?
(k)If the cumulative effect of the evidence is such that a lay person of reasonable intelligence and common sense would form the view that a particular claim will fail, would the plaintiff be capable of forming such a view?
(l)Is the plaintiff capable of assessing any settlement proposal on its merits, having regard to the state of the evidence, the parties’ submissions and other developments in the proceeding as at the time the proposal is made?
(m)If the trial is long and complex, is there a risk that the stress and pressure of the litigation might harm the plaintiff’s physical or mental health?
A self-represented person who is incapable of continuing to act as his or her own advocate is not necessarily incapable of managing his or her affairs in relation to the relevant proceeding, as that person may be capable of retaining legal representatives to continue to conduct the proceeding.
Ordinarily, the court will determine whether a party has the requisite capacity for the purposes of O 15 after receiving medical evidence. However, where a party’s incapacity is readily apparent from his or her behaviour inside the courtroom, the court may be able to make the determination without the assistance of medical evidence.
[Footnotes omitted.]
The applicant here is self-represented. A person is entitled to represent themselves if that is their wish. The Court must only interfere when that is necessary to ensure a just outcome in litigation.
Consideration
The Notice of Appeal is difficult to follow. A number of interlocutory orders over an 18 month period are appealed from. They were orders made by various Masters who had the conduct of the interlocutory application from time-to-time. It is only the final order appointing the litigation guardian that is of any moment. The earlier orders were preliminary to the final order.
The appeal was commenced about 12 months after the final decision made by Master Olsson. I put aside for a moment the question of whether an extension of time should be granted. The matter raised in this appeal is serious. The question of an extension is best considered after the merits of the appeal have been assessed.
The appellant identified six grounds of appeal. They are as follows.
The first ground of appeal is that the Master should have disqualified herself due to a conflict of interest. Counsel who appeared for the respondent was Ms Maria Demosthemous. A number of years ago both she and the Master worked at the firm of Mellor Olsson. The appellant does not point to any issue other than working in the same firm in the past. I am not satisfied that any question of conflict of interest and/or bias arose on the application.
The second ground of appeal is that Masters Rice, Keith and Olsson committed a miscarriage of justice. The ground relates to the appellant’s position that there was no need for the conducting of an inquiry as to her capacity to conduct the litigation. She submits that the Manning v Russell decision of Nicholson J contained a warning against too easily agreeing to conduct an inquiry. While that is true, I am not satisfied that this ground of appeal is made out. There was no miscarriage of justice in conducting an inquiry which is only an exploration of the issue. The conduct of an inquiry is of itself not harmful. If it had transpired that the inquiry was unnecessary, in the ordinary case, the position would be ameliorated by an award of costs.
The third ground of appeal is that the imposition of a litigation guardian was a miscarriage of justice. The appellant says that order was obtained through deception, in a hurry, and without any proof. She asserts that she is rational and perfectly capable of conducting the proceedings. She denies she has or ever has had any mental health issues.[7] There is no evidence that the order was obtained through deception. The process took almost 18 months, so it is not possible to accept that the inquiry was conducted in a hurry. There was proof from Dr Davis which, if accepted, justified the making of the order. This ground is not made out.
[7] Transcript 8 March 2022, page 5, line 10.
The fourth ground of appeal is that the Court and the defendants are torturing the applicant. That appeal ground is not made out on the material before the Court.
The fifth ground is that the applicant was wrongly accused of making alterations to a document. During the hearing before the Master, a number of versions of notes of the appellant’s admission to the Noarlunga Hospital were before the Court. The Master found that the appellant had altered the notes to improve her position. That finding was open to the Master. It is, in any event, a side issue that does not directly deal with the capacity of the appellant to conduct this litigation.
The sixth ground is that the orders are based on false and misleading information and arise because of bias. There is no material before the Court to make out this ground of appeal. All of the grounds of appeal fail. In the circumstances, there is no utility in extending the time within which to appeal.
My observations of the appellant are that she is an intelligent and articulate person. However, her attitude to the litigation and her conduct in Court is concerning. She appears to believe that there is a conspiracy against her and that the solicitors and the Court are involved in that. Regardless of the medical evidence before the Court, my own observations are that the applicant needs the assistance of a litigation guardian to conduct her claim. Objectively, she has a good claim because liability is admitted. She asserts that her claim is worth $7 million. There appears to be no rational basis for a claim of that magnitude. The appellant clearly needs assistance to make rational decisions about the conduct of the proceedings and possible settlement.
The orders of the Court are:
1.     Application for an extension of time to appeal dismissed.
2.     Appeal dismissed.
3.     The appellant is to pay the respondent’s costs of the appeal.